Hardworking spouses were the victors of an emotional legal battle on Monday after a court upheld their protection from fortune-seeking partners who will get into marriage with the aim of acquiring property they did not assist the other to acquire.
High Court Judge John Mativo held that the Matrimonial Property Act (MPA) of 2013, which provides that spouses will share family assets based on their personal contributions upon divorce, is constitutional and lawful.
The Federation of Women Lawyers (Fida) wanted section 6(3) of the Act declared unlawful because it provides that, in the event of a divorce, matrimonial property should be divided between spouses based on their contribution to its acquisition.
It wanted spouses to split the property equally, but the judge said this would open the door for people to enter into marriages and walk out in the event of divorce with more than they deserve.
“By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage,” said Justice Mativo.
Fida was concerned that women were disadvantaged by the law as, since most of them are housewives, their contribution to the acquisition of property cannot be monetised.
Others, it argued, use their resources for the day-to-day subsistence requirements of the family, and are therefore deprived of the opportunity to acquire durable property.
But Justice Mativo noted that the drafters of the Act were conscious of this and included in the law a clear definition of non-monetary contributions.
Indeed, the Act recognises a number of non-monetary contributions, including domestic work and management of the matrimonial home, child care, companionship, management of family businesses or property, and farm work.
The judge said courts will evaluate the evidence by each spouse regarding their monetary and non-monetary contributions and make a just and equitable distribution of properties in dispute.
“All that a party is required to do is provide evidence on details of his or her non-monetary contribution in the marriage and leave it to the court to determine,” he said. “I have no doubt that the court will rise to the occasion and, in the circumstances of individual cases, apply the evidence, the law and appropriate legal skills to arrive at a fair determination of the valuation of the non-monetary contribution.”
The court said the law talks of parties to a marriage, which means both men and women, and does not specifically refer to women.
“There are, and there will be, situations where women earn or contribute more than men in acquiring matrimonial property,” said Justice Mativo, who also held that Section 6 of the Act, which provides for liabilities incurred during marriage to be shared equally, was meant to curb situations where one party to a marriage is left to settle debts incurred during the subsistence of the marriage.
The argument by Fida that the Bill was passed amid protest in Parliament was also rejected by the court, saying it was subjected to a vote as required and it sailed through after the majority voted in its favour.
Other laws which safeguard the rights of spouses to matrimonial property are the Land Act and Land Registration Act, both of which require the consent of a spouse for the transfer or charge of a matrimonial home.